Regal Coal Co. v. Jackvich

• Decision Date: 05 February 1940
• Docket Number: 14666.
• Citation: 99 P.2d 196,105 Colo. 479
• Parties: REGAL COAL CO. et al. v. JACKVICH.
• Court: Colorado Supreme Court

99 P.2d 196

105 Colo. 479

REGAL COAL CO. et al. v. JACKVICH.

No. 14666.

Supreme Court of Colorado

February 5, 1940

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Proceeding under the Workmen's Compensation Act by Marget Jackvich compensation claimant, opposed by Regal Coal Company and State Compensation Insurance Fund, to recover compensation as an alleged partial dependent of a deceased employee. To review a judgment setting aside findings and award of Industrial Commission denying claim for compensation defendants bring error.

Reversed.

Byron G. Rogers, Atty. Gen., and Frank A. Bruno, Asst. Atty. Gen for plaintiff in error Industrial Commission.

Harold Clark Thompson and Louis Schiff, both of Denver, for plaintiffs in error Regal Coal Co., and State Compensation Fund.

Carl Cline, of Denver, for defendant in error.

YOUNG Justice.

Ferdinand Cernich came to his death by electrocution while in the employ of the Regal Coal Company at Lafayette, Colorado. The coal company carried its industrial compensation insurance with the State Compensation Insurance Fund. If deceased at the time of his death had any dependents within the intent and meaning of the Workmen's Compensation Act, '35 C.S.A. c. 97, § 280 et seq., it is not disputed that they are entitled to compensation based on his maximum wages. Marget Jackvich, residing at Rock Springs, Wyoming, a sister of deceased, filed a claim for compensation based upon her alleged partial dependency upon deceased for support within the intent and meaning of the Compensation Act. The claim was denied by the commission on the ground that claimant had not established her dependency. In this subsequently instituted action the district court found all the issues in favor of claimant and set aside the findings and award of the commission as wholly unsupported by the evidence.

All the evidence in the case was adduced by the claimant, and in its findings and award the commission summarized her testimony as follows: 'Marget Jackvich, sister of the decedent, has been married for thirty-seven years. Her husband is a miner, and is 60 years of age. She is the mother of one boy and five girls. She testifies that her son, Steve, twenty-eight years of age is not married and lives at her home. He earns approximately $1,100 per year, and pays to her the sum of $25 per month that she maintains is for board and room. That her husband earns approximately $1,000 per year, which he contributes to her, and that the deceased contributed approximately $500 within the year prior to his accidental death. That her brother made these contributions in spite of the fact that for the past two years, the deceased had been off work because of an injury sustained in December 1936, and drawing compensation at the rate of $10.93 per week. The deceased had only been working a few days for the respondent employer when he met his death by electrocution. Marget Jackvich also testified that the money received from her husband, son, and brother was comingled and all expenses paid by her from the funds thus accumulated.'

It is contended by claimant that her testimony was corroborated by that of certain other witnesses which was not considered by the commission. She further contends that a fair consideration of their testimony in connection with her own required the setting aside of the award rejecting her claim, as was done by the district court.

Witness Kruljac, a butcher and merchant of Rock Springs, Wyoming, testified he was the president of 'certain international lodges,' which he was not asked more particularly to identify, and that during two years that deceased was drawing compensation for an injury sustained in Wyoming during the year 1936, these lodges paid to him $1,500 in insurance in addition to the compensation which he received because of his injury. This witness further testified that in April, 1934, he saw deceased give $200 to Mr. Jackvich saying, 'I will leave this money for sister.' He then was asked the question, 'He said: 'Give the money to sister'?' which was answered in the affirmative. The witness also testified that on two occasions, not definitely fixed as to time, he had seen deceased take money from a cash register while he, the deceased, was in business in Wyoming, and that deceased said he intended giving it to his sister. Valentine Valter Cernich testified that he was a second cousin of deceased, and of course also of the claimant. During his direct examination he was interrogated, and answered, as follows:

'Q. Are you aware of whether or not the deceased, Ferdinand Cernich, gave money to his sister, Mrs. Jackvich? A. I know one time when he was over to my place in Longmont, he instructed me his sister would come for some money, and when she would come down I gave her $50.00.

'Q. Beside that can you tell whether he contributed to the family support? A. I couldn't say that, but he was always speaking for the good of her and always gave her money.'

On cross-examination he fixed the time the $50 was paid as July preceding the month of September during which deceased came to his death.

We think the foregoing fairly states the testimony which claimant alleges was not considered and which she further alleges tends to corroborate her testimony that she was partially dependent upon deceased.

With a record before it disclosing testimony substantially as summarized by the commission in its findings and award, supplemented by the foregoing statement of the testimony claimed to have been overlooked and which it is asserted was pertinent to the issues involved, the commission in making its finding used the following language:

'The Commission is of the opinion that claimant's testimony that one-half of her support was derived from her brother, and one-half from her husband is pure fiction. How or why the decedent, who did not even room or board at this sister's home, could or would contribute within $68.38 of his annual income to a sister with a husband and a son capable of supporting her was not even suggested. Neither was it shown that the alleged contributions were regular in point of time or amount, and therefore, a source of income upon which she or her family could depend for support. Claimant's testimony concerning the material facts of

...